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U.S. Issues Guidance on Vaccine Requirement

Daily Journal

17 Dec 2020

Janie Schulman spoke to the Daily Journal about the U.S. Equal Employment Opportunity Commission’s (EEOC) first set of guidelines on how employers should deal with coronavirus vaccination, which confirmed speculation that employers would be able to require employees to be vaccinated against the virus, even in cases where a vaccine has been made available under an emergency use authorization.

One of the challenges of navigating these rules is how they will not apply to all workforces the same way, Janie said. “Employers with unionized workforces will need to consider, before they implement something like a vaccine mandate, whether or not that mandate is…subject to bargaining with the union.” While employers with non-unionized workforces can more easily issue a unilateral vaccine mandate, she said, it is not always clear what kind of action employers can take against employees who refuse to comply.

“It’s possible that if employees get together to object, one could argue that that activity is protected concerted activity under the NLRA [National Labor Relations Act],” Janie explained. “If so, then an employer would have to be careful not to be accused of retaliation for taking adverse action against employees who object, because the NLRB [National Labor Relations Board] might view that as an unfair labor practice.”

The big question right now, Janie added, is whether vaccines should be mandatory. If no immunity legislation comes to pass, Janie said employers are at risk of facing claims no matter which route they choose. By mandating vaccination, employers might face fewer claims from employees who say they’ve contracted the virus at work. But if the vaccine is mandatory, “You might find employees who make claims of adverse side effects from the vaccine. You might get those discrimination claims based on disability or religion. You might open yourself up to potential negative PR from anti-vaxers or people who say the mandatory vaccine impinges on their freedom, and you might get employees who quit.”

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